0120091936
06-15-2009
Catherine D. Meress, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Catherine D. Meress,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120091936
Agency No. 6Z1M08003
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 3, 2009, finding that it
was in compliance with the terms of the December 5, 2008 settlement
agreement into which the parties entered. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
By letter addressed to the agency's EEO Director dated January 30, 2009,
complainant alleged the agency breached a confidentiality clause contained
in a December 5, 2008 settlement agreement she had entered into with
the agency in which she agreed to withdraw two pending EEO complaints.
The settlement agreement provided that complainant would receive a
lump sum payment of $14,000, removal of derogatory information from her
personnel file, a first-level supervisory endorsement for complainant's
application for a training program, and that the agency would seek a
temporary detail for complainant. The agreement also included a provision
that two management officials would be briefed on civilian conduct,
treatment, and responsibilities, and that those officials would be
instructed that they should not discuss complainant's EEO case with
anyone else.
The agreement also stated, in pertinent part, that:
(14) All promises, conduct and statements made in the course
of reaching this agreement including the fact of settlement, are
confidential, and will not be disclosed voluntarily to the extent
allowed by law. The complainant agrees to keep the facts and terms
of this agreement private and she will not disclose or discuss this
settlement with other current or former agency employees except for
responsible management personnel in order to facilitate the execution
of this agreement. The agency agrees it will not disclose or discuss
this settlement except as necessary for implementation in accordance
with the Privacy Act, 5 USC 552a. Any disclosure of the fact or terms of
the agreement by the employee shall be considered a material breach and
will constitute a waiver of the employee's protection under the Privacy
Act and will be an authorization to release the facts and terms of the
agreement as the Agency deems necessary. ... Management officials are
authorized to disclose the details of this agreement for the employee's
case to those officers and employees who have a need for such information
in the performance of their duties, or as otherwise required by law.
In her January 30, 2009, breach letter, complainant alleged that a
supervisor discussed her settlement agreement with two other agency
employees at a social event. As a result, complainant asserted that
the settlement terms were then discussed throughout the facility.
Complainant also asserted that an email sent by a management official
to a number of other management officials concerning the implementation
of certain provisions of the settlement agreement again violated the
confidentiality provision of the agreement.
In its February 3, 2009 FAD, the agency concluded that three agency
employees had discussed complainant's settlement among themselves and with
others in violation of the agreement. The agency stated it took prompt
action to ensure any such discussions ended and noted that disciplinary
actions against the involved employees were taken. Complainant was also
later issued an apology letter. The agency also found that the email
complainant objected to was sent by an agency official with broad civilian
personnel authority to other agency officials in a legitimate effort to
clarify certain implementation issues concerning the settlement agreement.
The agency concluded the email only involved those with a "need to know"
and did not violate the confidentiality provision of the agreement.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules of
contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
As an initial matter, in her appeal, complainant requests a hearing
on her breach allegation claims. The EEO complaints process does
not provide for hearings for a breach of settlement agreement claim.
See 29 C.F.R. � 1614.504. Further, to the extent complainant states
she is being subjected to an ongoing hostile work environment because
of the matters at issue herein, she may contact an EEO counselor with
respect to these new harassment claims and initiate a new complaint.
With regard to the instant breach claim, the Commission determines that
a breach occurred when the supervisor discussed complainant's settlement
agreement at a social event as admitted by the agency. However, we
agree with the agency that complainant has not established a further
breach with regard to the email issue.
Unfortunately, there is no practical way to undo the harm caused by the
supervisor discussing the terms of complainant's settlement agreement
with other employees. We note that the agency has taken steps to ensure
that a similar breach will not occur in the future and has disciplined the
supervisor at issue, as well as issuing complainant an apology. However,
complainant is correct that these steps cannot cure the breach. Where,
as here, a breach is found and an order of specific performance is
not possible, the only remedial relief available is reinstatement of
the two complaints settled by the agreement for further processing.
However, if the complaints are reinstated for further processing,
then the parties must be returned to the status quo ante at the time
that the parties entered into the settlement agreement, which would
require that the complainant return any benefits received pursuant to
the settlement agreement. See, e.g. Amour v. Department of Defense, EEOC
Appeal No. 01965593 (June 24, 1997); Komiskev v. Department of the Army,
EEOC Appeal No. 0119955696 (September 5, 1996).
Accordingly, we give complainant the option, in accordance with the
Order below, of either returning any benefits conferred pursuant to
the agreement and reinstating her complaints, or keeping the benefits
conferred and accepting the agency's actions to prevent future breaches
as resolution of this matter.
ORDER
The agency is ORDERED to notify complainant of her option to return to
the status quo prior to the signing of the settlement agreement and have
her two settled complaints reinstated or accept the agency's corrective
actions as resolution of this matter. The agency shall so notify
complainant within fifteen (15) calendar days of the date this decision
becomes final. The agency shall also notify complainant that she has
fifteen (15) calendar days from the date of her receipt of the agency's
notice within which to notify the agency of her choice. Complainant shall
be notified that in order to return to the status quo ante, she must
return any benefits received pursuant to the agreement. If complainant
elects to return to the status quo ante, the agency shall resume
processing complainant's complaints from the point processing ceased.
A copy of the agency's notice to complainant regarding her options,
as well as a copy of the correspondence reinstating the complaints
for processing, if applicable, must be sent to the Compliance officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 15, 2009
__________________
Date
2
0120091936
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120091936